Cooper & Co. v. Coates & Co., 88 U.S. 105 (1874)

U.S. Supreme Court

Cooper & Co. v. Coates & Co., 88 U.S. 21 Wall. 105 105 (1874)

Cooper & Co. v. Coates & Co.

88 U.S. (21 Wall.) 105

ERROR TO THE CIRCUIT COURT FOR

THE NORTHERN DISTRICT OF ILLINOIS

Syllabus

1. The statute of Illinois which, in trials of actions by or against partners on contracts, dispenses in the first instance with the necessity of proof of the partnership applies to a case where the declaration beginning thus

"A., B., and C., trading as A. & Co., complain of D., E., and F., trading as D. & Co.," then goes on referring throughout to the parties respectively as "the said plaintiffs" and "the said defendants." The designation of the parties as partners in the opening of the declaration is not a simple designatio personarum and surplusage, but amounts to an averment that they contracted as partners.

2. In a suit for goods sold, when a witness proves by testimony not competent that they have been delivered, the reception of his testimony is not ground for reversal where competent prima facie evidence, wholly uncontradicted and therefore conclusive, has also been given of the delivery. The defendant in such case suffers nothing by the incompetent testimony.

3. A bill of lading for goods sent to a purchaser and not objected to by him amounts to a liquidation of an account within the statute of Illinois giving interest on "liquidating accounts between the parties and ascertaining the balance," there being no other transaction between the parties.

4. And a draft drawn for the price of goods sold and delivered is equivalent to a demand of payment, and, there being no proof of credit, and the bill having been received without objection, equally brings the case within the statute, which gives interest on money due and "withheld by unreasonable and vexatious delay."

A statute of Illinois relating to evidence in certain cases [Footnote 1] enacts as follows:

"§ 11. In trials of actions upon contracts, express or implied, where the action is brought by partners or by joint payees or obligees, it shall not be necessary for the plaintiff, in order to maintain any such action, to prove the co-partnership of the individuals named in such action or to prove the Christian or surnames of such partners, or joint payees, or obligees, but the

names of such copartners, joint payees, or obligees, shall be presumed to be set forth in the declaration, petition, or bill, provided,"

&c.

"§ 12. In actions upon contracts, express or implied, against two or more defendants alleged to have been made or executed by such defendants as partners or joint obligors or payors, proof of the joint liability or partnership of the defendants or their Christian or surnames shall not in the first instance be required to entitle the plaintiff to judgment, unless"

&c.

Another statute -- one on the subject of interest, and which fixes interest in Illinois at six percent, prescribes the cases in which creditors shall be allowed to receive interest. This statute allows them to have it, among other cases:

"On money due on the settlement of accounts from the day of liquidating accounts between the parties and ascertaining the balance, . . . and on money withheld by an unreasonable and vexatious delay."

Both these statutes being in force, Charles Coates and others brought assumpsit against Charles Cooper and others to recover the amount of five different bills of iron, weighing different weights and alleged to have been sold and delivered on different days in January and February, 1870, by the plaintiffs, of Baltimore, Maryland, to the defendants, of Mount Vernon, Ohio.

The declaration began thus:

"Charles Coates, George Coates, and Pennock Coates, trading as Coates & Brothers, plaintiffs, in this suit, who are citizens of the State of Maryland, complain of Charles Cooper, George Rogers, and C. G. Cooper, who are citizens of the State of Ohio, co-partners, doing business as C. & G. Cooper & Co., defendants, who were summoned &c., of a plea of trespass on the case upon promises."

"For that whereas the said defendants on, to-wit, the first day of May, 1870, at Baltimore, to-wit, at Chicago, in the district aforesaid, were indebted to the plaintiffs in the sum of $5000,"

And throughout the rest of the declaration, the parties were referred to as "plaintiffs" and "defendants," without any addition of "as co-partners as aforesaid" or any intimation that the parties were copartners when the considerations were received and the promises, described in the different counts, made.

Plea: the general issue.

On the trial, the plaintiffs, to prove the delivery of the iron at Mount Vernon, Ohio, offered to read in evidence the deposition of one White, an agent of the Baltimore & Ohio Railroad Company at Mount Vernon, Ohio, and in its employ during January and February, 1870. Having testified to the delivery, at the time alleged, of iron to the amounts alleged, he said on cross-examination:

"I have a distinct recollection of the iron's being received at the depot and of the same's being delivered to the teamsters of C. & G. Cooper & Co., but the time of receiving and the date of delivery, and the weights of the iron, I derive from papers and books."

The defendants objected to so much of the answers as related to the time of receiving and delivery and the weights on the ground that the papers and books referred to by the witness were not attached to his deposition or offered in evidence and that the nonproduction was not in any manner accounted for, and on the further ground that the witness did not state and that it did not otherwise appear that the papers and books were written or kept by him or by anyone in the usual course of business. The court overruled the objections and permitted the part of the answer objected to to be read, stating that the fair presumption was that the books and papers referred to were the books kept by the witness in the course of his business as railroad agent. The defendants excepted.

The plaintiffs then showed by several witnesses that the iron was shipped to the defendants from the plaintiffs' manufactory in Baltimore in pursuance of written orders from the defendants to them, the orders being signed in the firm name of C. & G. Cooper & Co., and that the iron shipped

was marked C. & J. Cooper & Co. and shipped on board the Baltimore & Ohio Railroad by the plaintiffs so marked, at Baltimore, a few days prior to the dates mentioned in the deposition of White, and that the bills of lading for these shipments were mailed by one of the plaintiffs to C. & J. Cooper & Co., Mount Vernon, Ohio, and never came back to the plaintiffs to their knowledge, and that they would have known it if they had come back.

No evidence was given of any partnership of the plaintiffs, nor evidence of any express agreement on the part of the defendants to pay any interest on the bills or account, nor express evidence that the account sued upon had been adjusted by the defendants.

It was shown, however, that the plaintiffs at Baltimore, shortly after they shipped the iron in question, had drawn a draft on the defendants at Mount Vernon which had been returned for nonacceptance.

The court charged the jury:

1. That it was not necessary for the plaintiffs to prove the partnership or joint liability of the defendants, because such proof was rendered unnecessary by the statute of Illinois.

2. That it was unnecessary for the plaintiffs to prove that they were partners or joint payees, because such proof was rendered unnecessary by the same statute.

3. That the jury, if they found for the plaintiffs, should allow interest in their estimates of damages on the account from the date of the receipt by the defendants of the last item of the iron, at the rate of six percent per annum.

Verdict and judgment having been given accordingly, the defendants brought the case here.

The objections in this case are, none of them, serious in their character.

By the rules of common law, it is certainly necessary that parties who sue as co-plaintiffs, alleging themselves to be partners, shall make proof of that allegation. The same is true of persons who are alleged to be co-partners, and sued as such as defendants. By the statutes of Illinois, the rule of law is changed in this respect unless a plea in abatement is interposed or verified pleas are filed denying the execution of a writing set up. The statute rendered unnecessary in this case proof of the partnership or joint liability of either the plaintiffs or defendants. [Footnote 2]

The objection to the evidence of the witness, White, in stating the dates of delivery and the weight of the iron is not practical. If we suppose the evidence to be stricken out as requested, the result of the case must necessarily be the same. It would then stand thus: the witness, White, testifies that he knows of the delivery to the defendants of certain plates of iron, forwarded by the Baltimore and Ohio Railroad Company, in January and February, 1870; that the freight bills were paid by the defendants, and that the defendants made no complaint that the amount of the iron was less than it should be. The plaintiffs then proved by other witnesses that the four bills of iron were shipped by them by the Baltimore & Ohio Railroad to the defendants

in pursuance of written orders from them marked C. & J. Cooper & Co. a few days prior to the dates mentioned in White's deposition; that the bills of lading for the iron were mailed to the defendants, and that they never came back to the plaintiffs. This was prima facie evidence of the delivery of the iron as specified, and, no proof to the contrary being offered, it became conclusive. The plaintiffs' case is as well without White's evidence as with it. The defendants suffer no injury by its retention, and have therefore no legal cause of complaint. [Footnote 3]

The objection to the allowance of interest was not well taken. So far as the case shows, this was the only transaction that ever took place between the parties, and it is not pretended that any payments were made or articles furnished by the defendants which could give the transaction the character of a mutual account. It was simply the case of a bill of goods furnished upon a written order and a bill of lading of the articles at once mailed to the defendants. No objection was made by the defendants to the articles or to the account. A draft was drawn upon the defendants for the amount, which they refused to accept. This was equivalent to a demand of payment. An account (assuming this to be such) draws interest after liquidation, and it is considered liquidated after it is rendered if no objection is made. [Footnote 4]

A sale of goods without a term of credit given is liquidated when contracted, and after the account is presented and impliedly admitted, the defendants are in default and chargeable with interest. [Footnote 5]

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